What Killer Whales Can Teach Us - It Might Surprise You

The following is an adapted excerpt from Dave Neiwert's new book, Of Orcas and Men: What Killer Whales Can Teach Us (Overlook Press, 2015).


Orcas live a dream of man. They soar effortlessly, free of gravity, like birds or fairies through the air, gliding above the landscape and observing it from far above. Men have had this dream for as long as they have dreamed. It is why one of their greatest inventions is a machine that lets them fly. It is why, when we create a mythological ideal of a human and call him Superman, one of his chief attributes is that he can fly with grace and ease, as though gravity does not exist for him.

That describes the ethereal daily life of killer whales: gliding sylphlike through their element, their large pectoral fins spread like wings, soaring above the canyons and cliffs of the ocean floor, swooping and diving weightlessly at their leisure, with intelligent minds that rule over all they survey.

Their only real encounters with gravity occur when they play in the element – the air – that gives them such buoyancy in water. Orcas do more than merely breathe air; they leap into it with gusto, in events we call “breaching”. It is at once an attempt to defy gravity and to play in it, to celebrate and revel in the earth’s pull, to plunge briefly into a world that is both alien and native.

The weightlessness of being is only the most obvious facet of an orca’s existence that distinguishes it from what man and his fellow primates experience. Even though they weigh thousands of pounds (tonnage that would render them slow and ponderous as land mammals, as it does elephants and whales’ long-distant cousin, the hippopotamus), a whale’s daily life is spent in a state of gravity-free seawater, buoyed especially by the lungs that are the legacy of having evolved from land mammals. This state almost certainly played a role in the evolution of whales as the largest creatures ever to roam the planet, since size does not have gravity-related energy costs associated with it in a water environment. Whales were free to evolve as large as they liked, even if they sacrificed agility and grace in the bargain, and many species did so, especially the baleen whales, who glide along the surface and with their furry plates eat tiny fish and shrimp floating there.

Orcas are somewhere in between these behemoths and land mammals. Like the larger whales, they are big enough to be extremely powerful, capable of overwhelming nearly everything in the ocean if they choose. However, since they are a smaller whale, they have retained much of the grace, agility, and speed of their fellow dolphins. Orcas can zoom through the water at speeds up to 34 miles an hour and then frolic and play like their bottlenosed cousins.

Besides the relative weightlessness it imparts to air-breathers, one of the important qualities of water, since it is so much denser than air, is that sound travels extremely well in it. Whales in water bathe in sound, and the sounds they themselves make bathe everyone else in it. Loud enough and with enough intensity at a deep frequency, underwater whale songs are known to travel for thousands of miles. Up close and over short distances, water is an even more effective carrier of sound waves – about four and a half times faster than when sound travels through air – and the big-brained dolphin family takes full advantage. It is the medium through which all dolphins not only communicate with one another, but in which they also use sound in a way that lets them see underwater.

Strikingly, orcas (and whales in general) do not hear primarily with external ears like land mammals, though they have small vestigial ear structures on the sides of their heads and highly evolved hearing mechanisms beneath that. Their chief conduit for hearing is their lower jaw. The lower jaws of cetaceans are not only fairly large, but they are also hollow, filled with a fatty material that collects sound and transmits it through the middle and inner ears and on to the auditory nerve. This structure means that not only are the most distant and subtle sounds detected, but all these sounds are processed by those big brains at lightning speed, which is especially critical for orcas and their fellow dolphins.

That is because they not only are hearing sounds; they are making them at an extremely high rate, and this is not just for communicating but more importantly, for seeing.

Orcas have very good vision with their eyes, located on each side of the head. They are able to see with about the same acuity and for the same distances as humans. However, for any seagoing creature, there is an inherent limit to how far the water itself will allow it to see. Under the clearest conditions, the farthest even a sharp-eyed orca can see underwater is several hundred feet. In the turbid waters of places such as the North Pacific, this visibility can drop to as few as ten feet.

To overcome this, odontocetes – that is, toothed whales – evolved a sixth sense we call echolocation. It is a kind of sonar, although comparing it to the comparatively crude system of sound detection that humans have devised through technology does little justice to how sophisticated a sense it really is. The sounds that orcas and dolphins emit sound to our ears, through a hydrophone, like dense clicks that seem like rapid-fire bullets made out of sound. They make these sounds with a vocal structure inside their blowhole and then emit them in a focused beam through the front of their skulls.

The large melon on the front of orcas’ heads is not, as many initially assume, where their brain is located; that is actually farther back in their skull, safely encased behind the eyes. The round melon is actually a large capsule of extremely fine oil, very similar to the sperm whale’s coveted oil that came from the so-called spermaceti organ, similarly located above the front jaw. As those gigantic relatives do, orcas use this oil sac for focusing and transmitting those sound bullets into the water. The melon is actually a lens for seeing with sound.

The sound bullets that come out of the melon are very dense packets of sound, not entirely dissimilar from the packets that transmit computer information electronically, and so when these sounds bounce back to the killer whales, they carry a broad spectrum of information. This apparently means that when this information is processed by that highly evolved and complicated brain, it renders the orcas capable of not merely detecting the presence of objects (as our sonar does) but rendering a clear and detailed vision of what is there in the water. Indeed, it goes beyond mere vision; orcas can see inside things. Because sound is actually capable of penetrating objects better than light, the bounceback from orca echolocation includes the more subtle variations that occur as the sound penetrates an object and then returns.

Experiments conducted with captive orcas, for instance, have established that they (and other dolphins) are able to detect the nature and shape of objects hidden inside opaque containers. There are a number of anecdotes from female dolphin and orca trainers whose subjects began acting differently (in one case, protectively) around them, leading the trainer to later discover that she was pregnant. These latter incidents, however, are purely anecdotal, as with so many things dolphin-related; there has never been a proper scientific study to determine if dolphins can detect human pregnancy.

“I think it’s extremely plausible that dolphins, including orcas, would be able to detect a fetus,” says Lori Marino. “We know from other studies that they are very good at going from a visual image to an acoustic image,” and vice versa.

The sophistication of dolphin-family echolocation is part of why the United States Navy employs dolphins to locate objects that can’t be found otherwise. In the summer of 2013, for instance, Navy dolphins were able to lead divers to an antique 19th-century torpedo that was then recovered from the ocean floor off the coast of California, not far from the Hotel del Coronado in San Diego. It was a find, Navy officials explained, that they could never have made with their own multibillion-dollar sonar systems.

“Dolphins naturally possess the most sophisticated sonar known to man,” boasted Braden Duryee of the Space and Naval Warfare Systems Center Pacific. The dolphins who found the torpedo were being trained in mine detection, and when they kept alerting their handlers to the presence of an object where none was supposed to be, they were asked to place a marker on the spot. When divers investigated, they found the old torpedo.

Orcas’ sonic capacities have also inspired human efforts to replicate them. Researchers at Stanford have developed an ultrasensitive hydrophone modeled after the design of killer whales’ middle ear, which employs a tympanic bone-and-plate complex to transmit sounds into the nervous system. The device the scientists constructed based on that model now allows researchers to capture a wide range of ocean sounds, from up to 160 decibels to the quietest whispers, and to do so accurately at any depth, something that was never possible with traditional hydrophone designs.

“Orcas had millions of years to optimize their sonar, and it shows,” explained Onur Killic, one of the researchers. “They can sense sounds over a tremendous range of frequencies, and that was what we wanted to do.”

Naturally, orcas are sophisticated not only at making sounds but at listening to them, too. As with everything killer whales do, it is shared, a social thing.

***

The female orca is not only drifting intently toward me with a water bubble on her head. She is also echolocating me. Like crazy.

The sounds that orcas emit when echolocating are striking. We call them clicks, but that’s not quite right. Unlike the calls and vocalizations we all know from various whale-sound recordings, these sound bullets go rat-a-tat-tat-tat-tat through the water, and you know when the bullets are being directed at you, because they become intense and direct; you can practically feel them. At times, the bullets fly a second or so apart, and then, when an object gets their attention, they will let off whole strings of them: br-r-r-r-r-r-r-r-rt.

The female watching the calf is pounding my kayak with these sound bullets, but she is not the only one. In general, these orcas I am watching at Kaikash Creek are being very businesslike under the water. Listening on my hydrophone, I am struck by how few vocalizations they are making. Instead, the clicks and chains of clicks are everywhere. It would be reasonable to hypothesize that what I am hearing is the whales busily hunting, rather than socializing. Since we can’t really see what they are doing underwater, however, we can only guess. What is fairly obvious is that this female is echolocating me heavily because she wants to keep an eye on me. Or perhaps more importantly, she is trying to alert the calf to my presence, as well as my position, so that it can avoid coming into contact with me.

Then it strikes me. Echolocation is something that whales not only use for themselves, but something that they can share. The calf gets bounceback from the same sounds that its mother is emitting. It is almost as though she is shining a sound flashlight on me so that her young charge, preoccupied with chasing fish, is aware of my presence and doesn’t get too close.

Tests with captive dolphins, have found the same thing. Dolphins were found to have the ability to “eavesdrop” on another dolphin’s inspection of an object. This may also help explain their social behavior when hunting, since the more orcas or dolphins there are lighting up parts of the water with their echolocation sounds, the better they all can detect and snag their prey.

It suggests, moreover, that echolocation is more than a mere sense. In the hands of orcas, as it were, the sense becomes a social activity, even a kind of communication.

***

Even the way that orcas sleep is social, something shared.

I was still sipping my morning coffee one of the mornings at Kaikash Creek when a pod of orcas, sleeping, came past. You could tell they were asleep because the procession – kooosh kooosh kooosh in succession as they broke the surface of the glasslike water, rhythmic and slow and majestic – was clustered together closely, in a line, and surfacing only every forty-five seconds or so, coming up and going down as a group. I sat on my log and watched them. The only other sounds were the keening of the gulls that occupied much of the rocky beach.

Every breath that killer whales take is voluntary and conscious; unlike most land mammals, most cetaceans do not have an involuntary-breathing mode. Early human captors discovered that when they anesthetized dolphins and orcas in their care, it killed them, because they simply stopped breathing. Sleep, however, is a physiological requirement of every mammal on earth. So, when and how do they manage it?

In the case of killer whales (and most dolphins), the trick involves shutting down only half of their brain during a given sleeping session, remaining just awake enough to swim, surface, and breathe, all in a slow, rhythmic pattern. In the wild, where orcas swim almost constantly, this is done in large pods of up to twelve whales, who line up in a wide arc and draft off each other’s wake as they rise, breathe, and submerge together.

This is something spectacular to see, even if the orcas are not at all playful when sleeping. There is nothing quite as moving as the sight and sound of a long row of killer whales surfacing one after another, the plumes hanging in the air, and then vanishing below the surface when the procession finally reaches the end of the row. The silence follows, hanging there, for somewhere between 15 and 20 seconds, and then as certain as a clock, the first in line resurfaces again, a little further along on the same line of travel, and the whole row rises behind them, like fingers rising and falling on an oceanic piano, playing a syncopated melody.

The one constant in orcas’ lives is their togetherness; sleeping and awake, eating and playing, traveling and exploring, everything is done together. Every ecotype of killer whale has been observed engaging in a form of prey sharing. Resident  killer whales share salmon they have caught with other whales; transients and Antarctic whales share seal kills; North Atlantic orcas team up to herd herring into balls; and even New Zealand whales who hunt rays on the seafloor often team up to hunt them and then share their meals with one another. Moreover, these are animals who mostly remain with their familial group for every day and moment of their lives.

Socializing is wired into orcas evolutionarily, at a level that dwarfs the comparatively loose social ties of humans. One of the logical consequences of this is that it requires an abundance of the quality that makes social life possible: empathy. By empathy, we mean not simply the ability to sense what other people and beings may be feeling, but to feel it ourselves, and then to act accordingly, perhaps contrary to one’s immediate self-interest or desires. It is empathy that not only makes orcas most like humans, but perhaps makes them more than human. For modern humans, empathy is not a universally desirable trait, since it reeks of vulnerability in an ever-competitive world. For killer whales, empathy is an evolutionary advantage.

***

So how intelligent are orcas? Well, how do you define intelligence?

Here’s a thought experiment: suppose the scientists here on Planet Earth who are engaged in searching for signs of extra-terrestrial life were to find evidence (via, say, an interstellar probe on some distant aquatic planet) of a life form that turned out to be identical to killer whales or some other dolphin, with all the signs of intelligence, but with a similar communication barrier. Would it still qualify as an intelligent life form?

I asked Seth Shostak, the senior astronomer at the SETI Institute, whose chief work entails hunting down the possibility of intelligent life on other planets (SETI is an acronym for Search for Extraterrestrial Intelligence). Shostak is also a well-known skeptic and critic of the pseudo-science that surrounds this field. Unsurprisingly, he quickly shot down the fanciful question for its impossible qualities, because, of course, as smart as these creatures might be, they don’t create technologies capable of flagging down intelligences from other planets.

“In terms of what would happen if we were to find dolphins on another world, the simple answer to that is, we won’t,” he told me. “I mean, dolphins do not build radio transmitters. So you can say they’re intelligent, but not according to our definition. If you can’t solder together a transmitter, we don’t hear from them.”

The subject of dolphin intelligence, however, has special resonance for the scientists at SETI since there was a good deal of research into dolphin communications in its earliest days, due largely to the presence of Dr. John Lilly, the pioneering cetacean researcher, in the gatherings of scientists concerned about finding extraterrestrial intelligence. One of the earliest of these, in November 1960, was dubbed “the Order of the Dolphins,” and it included such astronomical luminaries as Carl Sagan, Frank Drake, and Otto Struve.

“There was hope in the early days that if we could learn how to communicate with the dolphins, that would give us some indication we might be able to communicate with E.T.,” Shostak said.

Of particular note in recent years has been SETI researcher Laurance Doyle’s work examining dolphin sounds. Doyle applies a branch of mathematics called information theory, the study of the structure and relationships of information, to analyze radio signals coming from space, in the hopes of detecting one of those signals that Shostak described. He and other scientists, notably Cal-Davis’s Brenda McCowan, have tried applying the same theory to noises from bottlenose dolphins. They found that dolphins, in comparison to other animals particularly, have a language complexity comparable to humans. McCowan found, for example, that adult dolphins send information when they whistle, while infant dolphins do not; much like human babies, they only babble in comparison. Similar studies of humpback whale sounds establish that the strange songs they sing feature their own kind of syntax and have many of the basic features of a language.

The problem of the communication barrier is not, evidently, a matter of cetacean stupidity. Indeed, although bottlenose dolphins do not have the physical ability to imitate human speech, scientists at the Dolphin Institute in Hawaii were able to teach them over a hundred human words. The dolphins were also able to comprehend entire sentences, including syntactic nuances.

Indeed, Sagan once famously observed, “It is of interest to note that while some dolphins are reported to have learned English – up to 50 words used in correct context – no human being has been reported to have learned dolphinese.”

There are plenty of skeptics, of course, noted dolphin scientist Justin Gregg among them. “Most scientists, especially cognitive scientists, don’t think that dolphins have what linguists would define as language,” he said. “They have referential signaling, which a lot of animals do – squirrels and chickens can actually do that, and monkeys – and they have names for each other. But you can’t then say they have a language because human words can do so much more.”

At the same time, we are only beginning to get a glimpse into what it is that orca and dolphin communications really can do. “Dolphins have exquisite sound and they have a lot of places they could potentially encode information – we just haven’t looked adequately yet,” says dolphin researcher, Denise Herzing. Examinations of the echolocation signals emitted by killer whales, for example, have revealed that they are comprised of extremely dense information packets, suggesting that the information they obtain in the pingbacks from those signals is very rich indeed.

Moreover, those huge brains, for all those similarities to human brains, are structurally quite different in a fundamental way: the nerve fibers that comprise the bulk of dolphin and orca brains are built for transmitting sonic information, in contrast to the brains of most land mammals, including humans, which are dominated by visual-cortex fibers. In other words, their brains are particularly geared for processing sound information.

This makes a great deal of evolutionary sense, considering that the liquid medium in which orcas and other cetaceans dwell is a tremendous transmitter of sound waves. Light, on the other hand, has problems in water; even the clearest of waters still only allows about a hundred yards of visual acuity for the best of eyes on the brightest and calmest of days, and most cetaceans have excellent vision. However, using their sonar capacities, orcas can “see” underwater for hundreds of yards, perhaps even up to a mile or more, expanding their “visual” realm by leaps and bounds.

Yet if these sonic capacities are simultaneously powerful and subtle, then it seems likely that there is more than greets the human ear to the sounds they use to communicate with each other. If their brains are structurally and fundamentally different, then our criteria for “intelligence” will almost certainly be different than theirs, too. It is just as possible they see us as acoustically obtuse and primitive – since, in comparison to them, we probably are.

For Seth Shostak, our thought experiment about extraterrestrial orcas was at least a good way to provide perspective on our own species and its presumptive claim as the planet’s only intelligence. “I think there’s a general consensus among people who study this that humans are definitely not the only intelligent species on the planet,” he said.

***

Most of what we define as “intelligence” involves the ability to form, recognize, and then manipulate abstract ideas. These ideas, particularly the ones for which we test when we want to measure intelligence and which involve measuring, investigating, and conceptualizing the world around us, are all derived from the limited number of senses of sight, hearing, touch, taste, and smell. What we call “intelligence” fits within what we know of those realms. It is a decidedly human-based test.

Orcas, too, have a limited number of senses. Their ability to see is about equal that of humans. Their sense of touch is exquisite and may be more important than we know. They have no sense of smell at all, but they do have a well-developed sense of taste roughly equal to ours.

However, it is in the realm of hearing that killer whales’ senses reach another dimension entirely. They not only can perceive the world by the simple reception of sound, as land mammals can, but they are also capable of making sounds that reflect back to them and that, thanks to huge brains capable of translating all this information, enable them to not only see the shape and nature and inhabitants of their world, but to see inside them. That is a kind of intelligence that is simply beyond our ability to fully comprehend, let alone measure.

At some point, the breadth of a species’ perception (that is, how many different kinds of data it receives from varying sources) and its depth of perception, the level of penetration of reality that its senses provide, should both factor into our assessment of its intelligence. If those are our criteria, then killer whales are definitively, and undeniably, more intelligent than human beings, because their echolocation sense provides both greater breadth and superior depth.

As Marino puts it: “Orcas may not be very intelligent humans, but humans are really stupid orcas.”

That, in fact, is the root of the problem. Even as we determinedly avoid anthropomorphizing these creatures, we almost reflexively apply a patently anthropocentric definition of intelligence, one involving language and its use. This is a definition that almost automatically places humans atop the heap, since our wired-in instinct for language is arguably one of our greatest evolutionary advantages.

Dolphin scientist Thomas White (along with others) has proposed an alternative approach to defining intelligence, one that is “species-specific”: “The challenges that need to be met simply to stay alive are significantly different on the land and in the water. … [W]e need to be careful in making straightforward comparisons between human and dolphin intelligence. It may be like comparing apples and oranges.”

Instead, White argues, we should “think about intelligence simply as the intellectual and emotional abilities that make it possible for both a species in general and its individual members to survive in their environment and to solve the problems and overcome the challenges that life throws at them.”

Lori Marino points to the killer whales’ echolocation as evidence of a different level of intelligence: “I would say that having this sixth sense means that we’re getting only slivers of who they are from what overlap there is,” she says, noting that most attempts to assess their intelligence have tended to focus on their communications and their “language,” if that’s what they possess. “Whatever we can recognize in them that we have in ourselves, we throw that into the bag we call intelligence, and we say, ‘Well, at least we can recognize this in them and that in them,’ and so forth. But you know, that’s just a small, narrow sliver of who they are.”

***

Can an animal be a person?

That is the essence of the challenge the killer whales pose to humans, especially those humans who hold them captive. But it is also a larger challenge to all of us, especially if we endeavor to take our role as stewards of the world in which we live seriously. It is a strange and alien concept in a world dominated by Western thought, in which humans have historically been regarded as exceptional beings apart from nature and in which all nonhuman occupants of the world are considered animals, at best property and at worst vermin, the extermination of which is required for the sake of human well-beings.

“Right now, there is no one besides a human who is a person,” says dolphin scientist and ethicist Lori Marino. “They’re all property, no matter how complex they are, no matter how much we love them. They have no inherent rights of their own.”

Yet the more we learn about dolphins in general, and killer whales in particular, the more that our assumption of innate superiority looks like a presumption. Orcas, with their big brains, complex social structures, mysterious communications, and mind-boggling sixth sense, by their very existence, challenge the longstanding belief that human beings are the planet’s only intelligent occupants. Social life for killer whales, as we have seen, is deeper and more omnipresent than it is for humans; their identities are defined by their families and tribal connections; and their empathy is powerful enough to extend to other species. If orcas have established empathy as a distinctive evolutionary advantage, it might behoove a human race awash in war and psychopathy to pay attention.

We’ve also learned that these creatures have rich emotional lives. Their brains are extremely developed in the areas associated with emotional learning, and their tight social arrangement, in which family bonds remain for life, is complex and sophisticated. They also have a demonstrated capacity for empathy. Nor, for that matter, is this only true of dolphins and cetaceans generally. The more we learn about a number of creatures that have always been deemed non-persons by dint of their nonhuman status, the more their emotional lives are being revealed: chimpanzees and all the great apes, elephants, even cats and dogs and pigs and cattle, all have more developed emotional centers than we had previously supposed.

Gregory Berns, an Emory University neuroeconomist, has concluded that dogs, for example, provide plenty of food for human thought even beyond what we all thought we knew. “The ability to experience positive emotions, like love and attachment, would mean that dogs have a level of sentience comparable to that of a human child,” writes Berns, “and this ability suggests a rethinking of how we treat dogs.” Berns, like an increasing number of animal ethicists, contends that this rethinking should take the shape of “a sort of limited personhood for animals that show neurobiological evidence of positive emotions.” In other words, the more closely we study animals, the more we find much of what we think of as constituting personhood. It is not exclusive to humans.


This is, of course, sheer craziness to many people. “The whole concept of non-human personhood is fraught, and people respond differently to it,” says Lori Marino. “I’m not even sure if personhood is the right word to say, but it’s the word we have right now.” The high intelligence of certain species – particularly orcas, dolphins, and chimpanzees – has been the driver of the ethicists’ own evolution in their views. Most of all, it has forced us to recognize that our definition of intelligence is self-servingly geared to place us on top.

“We ignore the inconvenient fact that we choose to define and measure intelligence in terms of our greatest strengths,” observes marine biologist and ethicist Jeff Schweitzer. “We arbitrarily exclude from the definition of intelligence higher brain functions in other animals. Enter the compelling interest in communicating with dolphins. We would be low on the list of smart animals if we included in our basic definition of intelligence the ability to use self-generated sonar to explore the environment and to communicate.”

Because personhood has always been associated with intelligence, a less anthropocentric definition of intelligence yields a slightly reconfigured understanding of personhood as well. Marino’s dolphin-science colleague, Thomas White, has proposed a definition of personhood that includes being alive, aware, being capable of feeling positive and negative sensation as well as emotions, having a sense of self, having control over one’s own behavior, and having the ability to recognize other people and respond appropriately.

A person has a variety of sophisticated cognitive abilities. It is capable of analytical, conceptual thought. A person can learn, retain, and recall information. It can solve complex problems with analytical thought. And a person can communicate in a way that suggests thought.

As White explains, dolphins fit this definition more than adequately, as demonstrated in a variety of experiments. Their creativity and inventiveness, for example, were brilliantly exhibited by a female dolphin named Malia at a facility in Hawaii. Malia was rewarded for exhibiting new behaviors and developed an expansive repertoire of stunts beyond anything her trainers had thought possible.

The dolphins’ ability to control their behavior and to recognize other individuals is embodied in the interactions with humans observed by dolphin scientist Denise Herzing in southern Florida; those dolphins, in fact, seem to eagerly seek out humans, even though they are not being fed or stroked or otherwise interfered with, and engage them in a variety of play behaviors.

Even more striking is the social dimension of dolphins’ and orcas’ faculties of perception, especially their echolocation. Just as when that calf I encountered off Kaikash Creek seemed to be listening in on the echolocation bullets from its mother that were striking my kayak, scientists have found that dolphins, too, “eavesdrop” on the echolocation sounds made by their fellow pod members. Brain specialist Harry Jerison observes:


Intercepted echolocation data could generate objects that are experienced in more nearly the same way by different individuals than ever occurs in communal human experiences when we are passive observers of the same external environment. Since the data are in the auditory domain, the “objects” they generate would be as real as human seen-objects than heard "objects," that are so difficult for us to imagine. They could be vivid natural objects in a dolphin’s world.


The “social cognition” that arises from this kind of richly shared experience of the world would even lead to a different sense of self than humans experience. Jerison argues: “The communal experience might actually change the boundaries of the self to include several individuals.” This clearly indicates that dolphins – and particularly killer whales, in whom we have observed the most highly developed acoustic skills, as well as the most elaborate social and communicative structures in the delphinid family – have powerful emotional and empathic connections to each other that are integral to their own personal identities as beings in the world. Their togetherness defines them as persons.
 

White's observations about the personhood of dolphins applies as well, naturally, to orcas,  perhaps at an even higher level – meaning that, logically speaking, they all qualify for personhood, as do dolphins, and indeed, the same logic thereby opens the door for consideration of the same status for a number of other species of animals.

When we define intelligence in a way that is appropriate to a species, its capabilities, and its environment, that likewise applies to our definitions of personhood. Our traditional definition of personhood is also deeply anthropocentric, based on an experience of the self that encourages highly individualized behaviors. Cetaceans, on the other hand, experience self in a completely different way, one encouraged by an aquatic environment that produces highly social and empathic beings. However, when we start redefining personhood in a less anthropocentric way, there are deep ramifications. That road inevitably leads to the realm of law and legal rights, nominally the province of every person.

“So the rights that proceed from intelligence are species appropriate,” says Marino. “You know, dolphin rights are not the same as human rights, and dolphins don’t need to have the same rights as humans. So you look at what you can deduce to be what the individual animal needs for a healthy, productive life. And whatever those things are, that is what their needs, their rights are.”

The implications proceed beyond just captive cetaceans, however. Many primates are held in captivity in zoos and research facilities around the world. Dogs and cats are considered the property of their owners, to be disposed of as they see fit. So are agricultural animals such as pigs and cows. When we talk about giving them rights, what does that portend for the people who breed and raise the former, and slaughter and eat the latter?

The ethicists say that the rights are naturally limited to what the animals’ needs are. Recognizing such animals as “nonhuman persons” doesn’t necessarily mean people have to stop eating them or using products from them. It does mean, however, that people would be required to give the animals in their care decent lives in which their daily needs are met. If these ethics were to gain cultural currency, facilities such as the gigantic “pig cities” where animals are raised and die in tiny pens, locked up with thousands of their fellow hogs, would no longer exist.

“I mean, clearly, no one is saying that pigs should have the right to go to college,” says Marino. “But they do have the right to be able to move around at will, and be able to have their babies in a way that they like, and those kinds of things. It runs counter to a lot of traditional views, especially the view of animals as property,” she acknowledges.

But the science underlying our understanding of them impels a shift in ethics. That shift, she says, is embodied in the growing scientific consensus that captivity is not an appropriate state of being for killer whales. “The bottom line really comes down to the scientific data, which will tell you if these animals can thrive in captivity,” Marino says. “And they don’t. People ask my opinion all the time, and I say my opinion is irrelevant. Here are the papers that led to my accepting the conclusion that they cannot thrive in captivity. And I always try to impress that upon people.

“They are big and strong and so impressive. But stop and think about how little you really know about them from captivity. What’s really impressive about orcas is all the stuff they do in their natural environment – their social life, the way they hunt, the way they travel, the way they partition resources, their cultures – all that stuff, you get no sense of that in captivity. You just get basically the very superficial kind of big giant strong animal splashing in the water.”

Marino and a number of her colleagues have joined forces to create the Nonhuman Rights Project (NhRP), an attempt to bring their ethical considerations into the legal realm, actually giving animals rights of their own for the first time. Their first campaign involves giving four captive chimpanzees held at various locales in New York State their relative freedom and moving them to a sanctuary where they could live out their days in a semi-wild environment.

“No one has ever demanded a legal right for a nonhuman animal, until now,” said Steven M. Wise, the founder and president of the project, when the lawsuit was announced. “When we go to court on behalf of the first chimpanzee plaintiffs, we’ll be asking judges to recognize, for the first time, that these cognitively complex, autonomous beings have the basic legal right to not be imprisoned.” 

Initially, the lower courts rejected the plaintiffs’ arguments, as expected. The attorneys at the project are more hopeful that they can gain traction in the appeals courts. “These were the outcomes we expected,” said Wise, after the December 2013 initial ruling in the lawsuit. “All nonhuman animals have been legal things for centuries. That is not going to change easily. … The struggle to attain the personhood of such an extraordinarily cognitively complex nonhuman animal as a chimpanzee has barely begun.”

Says Marino: “The NhRP is trying to take the first step, which is just to establish common-law legal personhood.  It’s not even legislative or constitutional. It’s just trying to get one judge to say that one chimpanzee is a legal person with a right to bodily liberty. And that’s going to be a tall order, but I think eventually we’ll get there.”

Something similar had been attempted the year before, but instead with orcas. A variety of animal activists, led by People for the Ethical Treatment of Animals, went to court to order SeaWorld to release its killer whales on the grounds that they were being held in “slavery,” and thus were in violation of the Constitution. Among the plaintiffs listed were Tilikum, as well as Corky, the last surviving Northern Resident captive orca. However, it was swiftly dismissed by the federal courts, with prejudice.

“The slavery lawsuit didn’t succeed for a simple reason, and that was that they wanted the judge to interpret the Constitution in a way that even if he wanted to, he couldn’t, which was to see orcas as human slaves,” says Lori Marino. “Clearly the 13th Amendment did not provide for orcas. You can go there, but the first thing you have to do is, orcas have to be persons – non-human persons.”

The backlash against orca captivity created by the documentary Blackfish, however, has revived a national discussion of the topic. Increasingly, the public is awakening to the reality that the scientific ethicists have been raising for many years, namely that the more we learn about killer whales, the more we realize that their continued captivity, especially as it is practiced today, is the wrong thing.

The next step – recognizing them as people, with the attendant respect for their intelligence, as well as their social and emotional lives – awaits.

Excerpted with permission from Of Orcas and Men: What Killer Whales Can Teach Us (Overlook Press, 2015) by Dave Neiwert. All rights reserved. 

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